APPLICABLE LAW IN TORTIOUS CLAIMS

Abstract

The court decisions identifying the applicable law for torts are surprisingly challenging. The rules are not apparently unclear but their application leads to incomprehensively different results. Judges disagree dramatically even in the simplest fact pattern of a car accident (eg Harding v Wealands [2007] 2 AC 1) as they did in Zubaydah v FCDO [2023] UKSC 50, [2004] 1 WLR 290. The case raised the applicable law to determine liability of defendants based in the UK for damages resulting from torture by agents of the USA. Mr Zubaydah is a Palestinian captured in Pakistan and detained without trial by the US authorities since 2002. Between then and at least 2006 he was held in a number of countries, tortured by the CIA and rendered to Guantanamo Bay. The Secret Intelligence Service and the Security Service (the UK services) had asked the CIA to put questions to the claimant during questioning. He claimed damages in tort for misfeasance in public office, conspiracy to injure, trespass to the person, false imprisonment and negligence. The claimant alleged that the defendants, the FCDO and the Home Office, were vicariously liable for the actions and omissions of the UK services.